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PaperclipPerfector  11mo ago (text post)   25037 thread views

Culture War Roundup for the week of May 6, 2024

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It's been a long time since we've discussed Trump, and there have been a number of developments in the court cases against him, and so I'm here to say that our long mottizan nightmare of peace and tranquility is finally over.

Florida

CNN: Federal judge indefinitely postpones Trump classified documents trial

Trump's trial in Florida over classified documents has been indefinitely postponed. (Jack Smith had requested it start the day after Trump's New York trial ended.) It turns out that new revelations made in documents Trump's lawyers requested have upended the case. CNN doesn't elaborate on what happened, for which I'll turn to this story:

Prosecutors admit key evidence in document case has been tampered with

“Since the boxes were seized and stored, appropriate personnel have had access to the boxes for several reasons, including to comply with orders issued by this Court in the civil proceedings noted above, for investigative purposes, and to facilitate the defendants' review of the boxes,” Smith’s team wrote in a new court filing to U.S. District Judge Aileen Cannon.

“There are some boxes where the order of items within that box is not the same as in the associated scans,” the prosecutors wrote.

Smith’s team in a footnote also conceded it had misled the court about the problem by previously declaring that the evidence had remained in the exact state it had been seized.

“The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court,” the footnote said.

It turns out that when the government alleged that Trump had classified documents he was not supposed to have, the government itself did not accurately know which documents Trump had, or which documents Trump was even supposed to have. Actually, worse than that, it turns out they fabricated some or all of the accusations. For instance, that famous picture of classified documents with cover sheets raided from Mar-a-Lago? It turns out those documents didn't have cover sheets, the FBI staged them before photographing, and they didn't even correctly label all of the documents they supposedly took:

The DOJ's Doctored Crime Scene Photo of Mar-a-Lago Raid

“[Thirteen] boxes or containers contained documents with classification markings, and in all, over one hundred unique documents with classification markings…were seized. Certain of the documents had colored cover sheets indicating their classification status. (Emphasis added.) See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the ‘45 office’).”

The DOJ’s clever wordsmithing, however, did not accurately describe the origin of the cover sheets. In what must be considered not only an act of doctoring evidence but willfully misleading the American people into believing the former president is a criminal and threat to national security, agents involved in the raid attached the cover sheets to at least seven files to stage the photo.

In order to prove Donald Trump had documents he wasn't supposed to have, the goverment took documents Trump had (that the NARA gave him in mislabeled boxes) and added cover sheets for photographs to them.

Whoops!

Judge Cannon has indefinitely postponed trial while Jack Smith's prosecutors work out answers to the questions posed by all these new revelations.

Georgia

CBS: Georgia appeals court will review decision that allowed Fani Willis to stay on Trump's Fulton County case

News-watchers will remember that, several months ago, it turned out that Fulton Prosecutor Fani Willis was hiring her secret lover to work on the Trump election fraud case. He was paid hundreds of thousands of dollars while they dated and went on vacations together, for which she insisted (without evidence) that she always paid him back. This posed a serious concern of misconduct and the risk that Fani Willis would be forced off the case entirely. After weeks of wrangling, Judge McAfee ruled that Willis could stay on the case, as long as Nathan Wade did not. Trump's team appealed the ruling, and now, the Georgia Appeals Court will hear the decision:

The court's decision to grant Trump's appeal will likely delay the start of any trial, though no date has been set for it to begin. The case in Fulton County is one of four Trump is facing as he mounts a third bid for the White House. His first criminal trial is currently underway in Manhattan, where local prosecutors charged him with 34 counts of falsifying business records. He pleaded not guilty to those charges.

Re-hearing the Fani Willis conflict of interest decision might lead to a repeat of the earlier hearing, where Fani repeatedly shouted over the courtroom and judge:

Fiery DA Fani Willis loses it on lawyer during misconduct hearing: ‘Don’t be cute with me!’

“It’s a lie! It’s a lie!” Willis screamed into the microphone, prompting Judge Scott McAfee to immediately call a five-minute break.

[...[

Willis told Merchant she was “extremely offended” by the implication that Willis slept with Wade after her first time meeting him at a conference in October 2019.

Earlier in proceedings, witness Robin Yeartie — a former employee in the DA’s office who claimed to be a longtime friend of Willis’ — said she had “no doubt” that Willis and Wade were already romantically involved in 2019.

So the question of prosecuting Trump over the 2020 election in Georgia will have to wait until it's determined how much of a liar the prosecuting DA might or might not have been.

New York

This trial is the juiciest of all, as it is currently in session in New York, with the judge threatening to have Trump locked up:

CBS: Trump held in contempt again for violating gag order as judge threatens jail time

Judge Juan Merchan said Trump violated his order on April 22 when he commented on the political makeup of the jury.

"That jury was picked so fast — 95% Democrats. The area's mostly all Democrat," Trump said in an interview with the network Real America's Voice. "It's a very unfair situation, that I can tell you."

In his written order, Merchan said Trump's comments "not only called into question the integrity, and therefore the legitimacy of these proceedings, but again raised the specter of fear for the safety of the jurors and of their loved ones."

Trump has promised, in interview and social media post, that he's willing to go to jail for exercising his First Amendment rights to criticize Judge Merchan, having said in April that it would be his "great honor" to go to jail for violating Merchan's gag order.

The issue really stems from Trump's accusations of political bias in the New York courtroom. The gag order was imposed after Trump attacked Merchan's daughter for working for Democratic fundraisers:

Dem clients of daughter of NY judge in Trump hush-money trial raised $93M off the case

Two major Democratic clients of the daughter of the judge overseeing Donald Trump’s hush-money trial have raised at least $93 million in campaign donations — and used the case in their solicitation emails — raising renewed concerns that the jurist has a major conflict of interest.

Another such example is that one of Bragg's prosecutors working the case is Matthew Colangelo, who left the #3 position at DOJ under Merrick Garland to work the Trump case:

Daily Mail: REVEALED: New PROOF the anti-Trump prosecutor in hush money trial is a 'true believer' in Leftist 'lawfare'... as Matthew Colangelo is exposed for taking thousands of dollars from Democratic party

In December 2022, Colangelo, the high-flying third most senior official in President Joe Biden's Justice Department, astonished colleagues by packing his bags and leaving for the Big Apple to take a less senior role working for Manhattan District Attorney Alvin Bragg.

Judge Merchan himself, it turned out, donated (a small amount) to the Biden campaign:

Judge Juan Merchan, who is overseeing Trump case, donated to Biden campaign in 2020

The state is arguing, in effect, that Trump, by paying Stormy Daniels in 2017, falsified business records that should have rightfully been marked as a campaign contribution, and thus constituted a conspiracy to undermine the 2016 election. The count of falsifying business records is a misdemeanor under New York State Law, but can be elevated into a felony charge if the business records were falsified with the intent to commit another crime. Curiously, Alvin Bragg has alleged that Trump falsified business records to commit another crime, but has not charged him with committing any other crimes:

The New York Case Against Trump Relies on a 'Twisty' Legal Theory That Reeks of Desperation

Ordinarily, falsifying business records is a misdemeanor. But it becomes a felony when the defendant's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." Bragg says Trump had such an intent, which is why the 34 counts are charged as felonies.

Bragg had long been cagey about exactly what crime Trump allegedly tried to conceal. But during a sidebar discussion last week, Colangelo said "the primary crime that we have alleged is New York State Election Law Section 17-152." That provision says "any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor."

In other words, Bragg is relying on this misdemeanor to transform another misdemeanor (falsifying business records) into a felony. But the only "unlawful means" that he has identified is Cohen's payment to Daniels. And while Cohen pleaded guilty in 2018 to making an excessive campaign contribution by fronting the hush money, Trump was never prosecuted for soliciting that contribution.

Section 17-152 has never actually been prosecuted to this effect, so the case is entirely novel. New York is arguing, in effect, that Donald Trump engaged in a conspiracy to undermine the 2016 election by falsifying business records in 2017.

This case is a hot one as it is currently in trial, and will likely be resolved with a few weeks. The question of whether the jury can be unbiased in such conditions is ongoing.

I will omit Trump's last criminal court case, the January 6th case run out of DC, as it is currently pending on a Supreme Court decision as to whether Presidents can even be tried for official acts in the first place, which would throw the whole case back down to the lower courts to disentangle which of Trump's actions on January 6th constituted private action. It goes almost without saying that, if Trump were elected in 2024, he could have the authority to fire Jack Smith and derail both this case and the documents case in Florida.

The DOJ’s clever wordsmithing, however, did not accurately describe the origin of the cover sheets. In what must be considered not only an act of doctoring evidence but willfully misleading the American people into believing the former president is a criminal and threat to national security, agents involved in the raid attached the cover sheets to at least seven files to stage the photo.

This is a tendentious presentation imo. Politico presents this as:

Smith’s team revealed in the filing that FBI agents carried printed “classified cover sheets” during the Aug. 8, 2022, search of Trump’s Mar-a-Lago estate and used them to replace any classified documents they discovered in cardboard Bankers Boxes that littered the former president’s residence.

“The investigative team used classified cover sheets for that purpose, until the FBI ran out because there were so many classified documents, at which point the team began using blank sheets with handwritten notes indicating the classification level of the document(s) seized,” the prosecutors wrote.

“Any handwritten sheets that currently remain in the boxes do not represent additional classified documents — they were just not removed when the classified cover sheets with the index code were added,” Smith’s team wrote. “In many but not all instances, the FBI was able to determine which document with classification markings corresponded to a particular placeholder sheet.”

I think it's reasonable to put cover sheets on the classified documents, given they are classified. The documents would have already had classification markings, so I don't see how this is "willfully misleading" the public "into believing the former president is a criminal and threat to national security".

It turns out that when the government alleged that Trump had classified documents he was not supposed to have, the government itself did not accurately know which documents Trump had, or which documents Trump was even supposed to have. Actually, worse than that, it turns out they fabricated some or all of the accusations

"Some or all", here, seems unjustified - I don't think anyone (other than perhaps Trump on Twitter) is claiming the accusations are all fake - that's a much stronger claim than "the documents aren't in the same order that they were when we scanned them". Your sources imply this is like "tampering" with evidence, and it may (not sure) be a procedural issue, but things like "adding cover sheets" and "reordering documents" don't undermine the claim that Trump committed a crime.

The use of the classified cover sheets in that photo does many things

  1. It provides a lot more visual impact than just classified documents with markings.

  2. It gives the impression that it would be obvious to anyone who casually looked in the box that it had classified documents. This is important because "knowingly" is an element of some of the charges.

  3. It effectively substitutes the FBI's CLAIM that the documents were classified for the actual evidence of classification.

  4. Since the classification markings on the pre-printed cover sheets didn't have to match those on the documents, it provided the impression that the documents had perhaps a higher classification level than they did. For instance, the NPR story claimed one of the cover sheets said "UP TO HCS-P/SI/TK", leading them to believe Trump had documents related to HUMINT. I thought at the time this was odd, you don't put "UP TO" on your caveats. But it makes perfect sense for a placeholder that might be used for a wide range of documents you might find. And given that, there might well have been no HUMINT at all; the placeholder is not evidence.

  5. Since the narrative accompanying the photo in court filings did not reveal that the cover sheets were added by the FBI, it constitutes an attempt to prejudice and/or mislead the court (as well as the public)

It provides a lot more visual impact than just classified documents with markings.

This is true, and probably isn't ideal, but it is not a huge issue. Maybe prosecutors shouldn't do things for 'visual impact', but they do, and at any rate the conduct of Trump and his lawyers at various legal proceedings has been 100x worse.

It gives the impression that it would be obvious to anyone who casually looked in the box that it had classified documents. This is important because "knowingly" is an element of some of the charges.

Pretty sure the documents themselves have clear classification markings on them?

It effectively substitutes the FBI's CLAIM that the documents were classified for the actual evidence of classification.

To the public, maybe? The claim is true, though, and it's not evidence to the courts, though. If those documents weren't actually classified when trump was President, Trump's lawyers would be all over that.

Since the classification markings on the pre-printed cover sheets didn't have to match those on the documents, it provided the impression that the documents had perhaps a higher classification level than they did.

Do you actually think this made a difference in anyone's reaction to this case? And, again, the courts are considering the actual documents and their classification levels. Here is an article going over the actual documents and their classification levels and contents. I do not think the cover pages were materially misleading given that.

Pretty sure the documents themselves have clear classification markings on them?

Even if this is the case -- and we in fact do not know that -- it would only be noticed by examining the document. Just casually looking in the open box would not make it obvious. There's a reason cover sheets are very noticable like that.

To the public, maybe?

And to the court, at the time.

The claim is true, though

How do you know? At this point you have only the FBI's say-so.

Do you actually think this made a difference in anyone's reaction to this case?

Yes, there was in fact a lot of screaming about "OMG nuclear secrets" and "OMG HUMINT, Trump's getting our spies killed!"

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